Thursday, February 26, 2015

Is Our Response to Title IX Racist?

By Anonymous

In
response to the federal government’s requirement that universities
be more proactive about sexual violence on campus, Colgate
established the Equity Grievance Policy (EGP) under the direction of
Associate Provost for Equity and Diversity Lyn Rugg. While having
clear procedures in place for addressing incidents of sexual violence
or harassment is a positive step forward, our two years of experience
with the EGP raise serious concerns about how just how “equitable”
it is; indeed, the numbers and the way in which the policy is
implemented give grounds for thinking that our response to Title IX
is racially biased.

At
the September, 2014 faculty meeting, Rugg confirmed the fears many of
us have had when she acknowledged that at least 60% of the EGP cases
have been brought against minority men (that is, at least 4 out of
the 7 EGP hearings which President Herbst reported had been held
since the inception of the EGP in his all-campus email sent April 28,
2014). This is a worrying percentage given that men of color
comprise only about 6% of the student body according to the
demographic statistics on the Colgate website. Further, Rugg stated
at the faculty meeting that 50% of those expelled through the EGP
were minority men, specifically international students of color;
once again, this percentage is much greater than the percentage of
minority men on campus.

Why
should faculty be concerned about the workings of the EGP?

First,
the EGP is used for complaints against students, staff and faculty,
so our interest in a fair and equitable process should be of concern
at both the community and personal level.

And
we also risk creating a campus that is less safe for women. When
Title IX is applied unequally through overrepresentation of minority
men, others may come to believe they can act with impunity; this is
much more likely to exacerbate sexual violence than mitigate it.

Finally,
if the disproportionality of minorities subjected to EGP proceedings
continues, the EGP will end up reinforcing racial divisions on campus
rather than doing anything to positively address them. Given the
stated desire of the administration to use the EGP in its efforts to
improve racial dynamics on campus, we cannot allow the EGP to be part
of the problem.

How
does EGP policy contribute to racial bias?

At
the September faculty meeting, Rugg was pressed to explain the
disproportionality of minority men subject to EGP hearings. Her
responses warrant closer examination. The meeting minutes state,
“Rugg noted that 1) Colgate can only move forward on complaints,
and those that have been received have been moved through the EGP
process; every case that has come forward has been handled seriously,
without selectivity.”

Rugg’s
comment does not acknowledge that her office exercises a good deal of
discretion in terms of which reports are moved forward to an actual
EGP hearing. It is instructive to compare the number of EGP hearings
(7 total from January 2013 to April 2014 according to Herbst) to
the number of incidents of sexual violence reported in the Campus
Safety Annual Report in 2013 alone (2014 statistics have not been
made public yet): 10 reports of incidents of sexual violence
including 7 “forcible sexual offenses,” 2 for “stalking” and
1 for “dating violence.” In other words, if there are an
estimated 10 reported incidents of sexual violence in 2014 (as in
2013) distributed equally across 2 academic semesters, then out of an
estimated 15 incidents up to April 28 2014, only 7 resulted in EGP
hearings. Therefore, the majority of reports of sexual violence do
not end up in an EGP hearing, leaving us to wonder why those chosen
to be moved forward are disproportionately against men of color.

Rugg
was also questioned at the faculty meeting about how the policy of
the university taking on the role of complainant and thereby acting
as accuser, judge and jury can be made equitable. Rugg denied that
there were any cases where the university has assumed the role of
complainant, “In cases that have been heard, it has never happened
that there has been no complainant.”

However,
this assertion is contradicted by the documents made public through
the lawsuit of “Dan,” an international student subjected to an
EGP hearing who is now suing the university for discrimination and
illegal imprisonment. [For the sake of the privacy of the students
involved, pseudonyms are used here.] In court filings (available
online), Colgate admits that it was the university who pursued
charges against Dan in the absence of a complainant: “ADMIT
Defendants TAYLOR and/or RUGG instructed Defendant BROGAN to pursue
the allegations involving [“Jill”] even though [Jill] had not
herself made the complaint.” There was a third party in the
case, “Cathy,” who initially contacted Campus Safety stating her
concern about an incident between Dan and Jill; however, Cathy had
left Colgate by the time the EGP investigation was initiated, she is
never referred to as a complainant in any of the court documents, and
indeed is not mentioned by Colgate as having any further contact with
the EGP beyond her initial emails. Therefore, in at least this case,
it appears the administration took on the role of complainant against
Dan.

The
Dear Colleague Letter from the Office of Civil Rights (OCR), to which
our EGP policy responds, is very specific about who can be called a
“complainant” in a Title IX case: a complainant is the person who
reports harassment and then consents to an investigation based on
their report: “Schools should inform and obtain consent from the
complainant before beginning an investigation.” If such consent
is not obtained or, as in the case cited above, the student did not
even make a complaint herself, then that person cannot be referred to
as a “named complainant.”

According
to OCR guidance, schools should be responding differently in a case
where a victim comes forward to report sexual violence, consents to
an investigation, and pursues the charges against an alleged
perpetrator compared to when these criteria are not met. In the case
of the former, the college is required to respond proactively through
its processes designated for addressing sexual harassment under all
circumstances.

In
the latter situation, on the other hand, OCR specifies “if the
complainant requests confidentiality or asks that the complaint not
be pursued…the school should inform the complainant that its
ability to respond may be limited.” Further, OCR is specific
about when a university is required to address harassment in the
absence of a complainant willing to pursue charges or in the case
where a complainant requests anonymity, instructing schools to weigh
such factors as “a history of arrests,” “the use of a weapon,”
and “the age of the victim.” None of these criteria given by
OCR are mentioned in our EGP policies.

Further,
Rugg’s statement at the faculty meeting that “if the university
has credible information of violation of EGP policy, it is required
to investigate and adjudicate regardless of the wishes of the
victim” contradicts OCR’s guidance that tells universities
that when a complainant wants to remain anonymous or does not want to
pursue charges against an alleged perpetrator, the university’s
response is thereby “limited” and, further, in such a case
“there are steps a school can take to limit the effects of the
alleged sexual violence and prevent its recurrence without initiating
formal action against the alleged perpetrator.” As mentioned
above, OCR gives specific criteria for when a school’s Title IX
obligations require it to override such a request by a victim and
specifies that “these instances will be limited.” Further,
OCR rightly points out that not respecting the wishes of a victim in
terms of anonymity or pursuing disciplinary action “can have a
chilling effect and discourage other students from reporting sexual
violence.” Certainly, Rugg stating that the EGP will take
action “regardless of the wishes of the victim” risks having that
effect.

In
Dan’s case, Jill states she was “put under pressure to provide a
statement.” She goes on to say, “She [Brogan] did not give me the
option to write it, she told me to provide her a statement.…I did
not even know it would be presented at the hearing and used as
evidence to reach a decision in the case.” These quotes come
from Jill’s statement in support of Dan’s appeal, which is part
of the lawsuit. As reported by the student, this action appears to
violate OCR’s guidance that “To improve trust in the process for
investigating sexual violence complaints, a school should notify
students of the information that will be disclosed, to whom it will
be disclosed, and why.”

Rather
than being “limited” by the absence of a complainant, Colgate
aggressively pursued the case against Dan, imposing the most severe
penalty at each stage. While many more allegations of harsh treatment
are part of the lawsuit, the list below only includes actions
admitted by Colgate:

The
EGP process was initiated when Cathy sent an email to Campus Safety
that “alleged that during an argument, Dan had put his hands around
her neck and pushed her against a wardrobe. She said that Dan had not
squeezed her neck, did not leave any marks, and that she was not in
any pain. Cathy claimed to be making this report a year after the
alleged incident because she knew of a similar incident involving Dan
and Jill. Cathy alleged that the incident had occurred more than two
years before, in the beginning of 2011. Cathy alleged that Dan had
pushed Jill, which resulted in her falling and accidently [emphasis
added] hitting her head on a table. Cathy alleged that Jill received
stitches in the emergency room as a result.”

A
No-Contact Order was issued that neither Jill nor Cathy
requested; indeed, Jill stated to Brogan that she “did not
believe that Dan was a threat to her and that the no-contact order
was unnecessary.”

Dan
was placed on interim suspension (the absence of any current
complaint about Dan calls into question why the most severe interim
measure, suspension from campus and classes, was imposed);

Dan
was kept at the Campus Safety office from 2:30pm until 10:00pm (7.5
hours!) where he was questioned;

Other
students placed on interim suspension have been allowed to stay in a
hotel;

Dan
was escorted by Campus Safety to a small, isolated room in the
basement of Curtis Hall and told he would not be allowed to go
anywhere else until his hearing 10 days later; Campus Safety officers
were posted outside the door 24 hours a day to “monitor”
him. Federal judge Andrew Baxter's opinion notes the following: "The Plaintiff has stated at least a plausible claim for false imprisonment.";

Two
requests by Dan and two by a faculty advisor for a short delay in the
hearing were denied (according to EGP policy, delays may be granted
for “compelling reasons” - Dan cited the confinement in Curtis
basement and suffering harassment by Campus Safety officers when
attempting to review the evidence against him among others);

The
investigation was closed before Jill submitted her statement, yet
this statement was distributed to the EGP hearing panel (raising
concerns that OCR’s requirement that there be a “thorough
investigation” was not met);

The
decision to expel Dan (the most severe sanction) was communicated to
him within a couple hours after the hearing concluded;

“Dean
of the Faculty, Doug Hicks rejected the appeal for a new hearing
outright despite Dan and Jill both citing multiple procedural errors
and instances of bias and discrimination, and despite a policy in
the student handbook that students have “freedom from disciplinary
sanction except by due process, with avenues of recourse available
when a student claims to have been subjected to pre-judicious,
discriminatory, or capricious treatment;”

The
one comparison case given by Hicks to justify that the sanction of
expulsion was not overly severe Colgate now admits involved a case
where “the expulsion resulted from accusations of sexual assault;
that the women pursued the charges and participated in the
hearings.” In contrast, Dan was expelled for dating violence, not
rape, and the women neither pursued the charges nor participated in
the hearings;

Despite
Jill writing in her statement to Hicks, “I admit that I acted
violently toward [Dan]; I hit him, bit him, scratched at him and
kicked him,” she was never disciplined.

Once
again, none of the actions on the list above have been contested by
Colgate.

Given
the aggressive prosecution of Dan that went far beyond what OCR
requires and now involves allegations of criminal infractions by the
university as a result of confining Dan in the basement, it is
surprising that the university insists in its court filings that his
case was a “purely internal investigation and disciplinary hearing
as to whether he violated the University’s private code of
conduct;” in other words, the allegations that resulted in Dan’s
interim suspension, confinement, expulsion and denial of a worthy
appeal did not even include conduct that the university believed
could result in any criminal charge.

Kiese
Laymon, a professor of English at Vassar College who gave a lecture
at Colgate on February 5th, emphasized how racial power structures
result in people of color being judged more harshly by disciplinary
systems of all kinds; Laymon referred to this as “being born on
probation” as a Black man.

These
issues are clearly evident in Dan’s case. For example, Dan’s
letter of interim suspension (included in an Affidavit submitted by
Taylor) accuses Dan of “actions [which] have allegedly included,
without limitation, striking and/or choking [emphasis added] each of
the aforementioned students [Jill and Cathy].” Further, Jill
states in her letter to Hicks that “Val [Brogan] told me that
[Cathy] said [Dan] had tried to choke her, which is absolutely false
and I did not believe it when Val said that.” (And why would the
Title IX Investigator reveal to another student what she was told in
a private email at all?) Contrast that with what Cathy actually said
in her email (quoted above) in which she explicitly stated that Dan
did not squeeze her neck and she was not in any pain. Why was this
incident described so much more severely by EGP Investigator Brogan
and EGP Chair Taylor than what had actually been reported by the
student herself? The use of such exaggerated and inflammatory
language appears to violate OCR’s standard that Title IX
investigators be “impartial.”

Further,
why would the EGP be so aggressive in its prosecution of a student in
the absence of a complainant or any alleged criminal behavior? Was
the other international student expelled through the EGP (the student
whose photo was distributed over email last fall after he trespassed
on campus following his expulsion) treated as harshly as Dan? Has a
White domestic student ever been treated like this under similar
circumstances? Or is the answer as the “concerned Black faculty”
hypothesize in their “Colgate to Crow-gate” AAUP blogpost: “that
the university is arguably building its reputation for making the
campus safer on the backs of black and international males.”

How
can we address racial bias in the EGP process?

Here
is a list of corrective actions and policy changes that could help to
change both the practices and the perceptions of the EGP on campus:

We need absolute transparency about the demographics of Title IX
reports to Campus Safety and EGP hearings; these should be reported
in full every year in the same way that demographics of new hires,
the student body etc. are reported.

Information about complainants in EGP hearings also needs to be
reported, and the Title IX Coordinator must acknowledge when the
university invokes its stated policy of acting as the complainant,
along with specifically how the situation meets the criteria given by
OCR for taking such action.

There is currently nothing in the EGP policy that specifies how a
complainant is to give consent for an investigation as required by
OCR. This must be added.

No one should be pressured to provide information to the Title IX
Investigator or any other person in the Office of Equity and
Diversity. Language must be added to our EGP policy that makes it
absolutely clear that any information given is voluntary. Further,
anyone who does make a statement must be informed how that statement
will be used and they must have the right to withdraw a statement if
they do not consent to such use.

Any statements made by an alleged victim or witness about an EGP case
and given to the hearing panel must be part of the investigation and
thereby receive a “thorough” review.

Those who participate in the EGP process must receive more training
in the area of race along with the training they already receive
focused on issues related to gender.

Should any allegation of racist or xenophobic comments be
substantiated (unfortunately, some of these have been alleged in the
lawsuit), that person should no longer be permitted to participate in
the EGP in any capacity.

As Rugg’s term as Associate Provost for Equity and Diversity is
coming to an end, the administration should appoint someone to this
post who has the background and expertise to confront issues related
to the intersection of race and gender who will therefore be
proactive and effective in making sure we do not repeat the patterns
seen thus far.

It
goes without saying that the college must have the means to address
and reduce sexual violence on campus, but how we implement such
processes is of vital importance. Moving forward, we must honestly
confront the impact of race on our EGP process and take the steps
necessary to make the EGP actually equitable through increased
transparency and accountability.

Echoing
Brian Moore’s AAUP blog post, along with the suggested corrective
actions, here, too, an apology is in order.

The above post does not necessarily
reflect the opinion of the AAUP membership or that of its officers, nor does
inclusion of the post on this website constitute an endorsement by the Colgate
chapter of the AAUP.

4 comments:

Anonymous
said...

We do need more information, because we simply don't have enough of it at this point to support a conclusion either way about racial bias in the EGP. How many of the roughly 15 total accused students were men of color? If it was 4, meaning all the accused men of color were referred for hearings (versus less than 30% of the accused white men), then the EGP really needs to justify such glaring disproportionality. If, however, it was 8 or 9, then the selection of students for hearings was demographically fairly representative of the complaints the EGP actually received.

Of course, in that case one can ask whether racial bias influenced the initial accusations. But unless theEGP itself was acting as the complaintant (another question it needs to clearly address given "Dan's" experience), the accusations came from other students, not the EGP.

The questions raised by the first commenter are important ones and speak to the necessity of the EGP providing more (and honest) data so they can be fully answered.

I happen to know (students talk about this stuff and they're under no FERPA restrictions) that of the 4 men of color who had EGP hearings, 3 of them did not have a complainant who actively pursued the charges. One was "Dan" obviously, but there were no complainants present at the EGP hearing of the other international student either. And in the case of the third, an African-American man accused of rape, the woman filed an "anonymous tip" about the incident; her name was revealed without her consent.

So, while this doesn't provide all the information the first commenter would like, it does point to the fact that the majority of the men of color who have been brought before the EGP have not had a complainant who actively pursued charges against them. Which is cause for concern.

While numbers are important, this post also reveals some very disturbing incidents, whether or not they are indicative of a verifiable pattern of racial bias. What is being done to address what appears to be real abuses here? How does the administration justify what's happening? We need answers.

This is part of the culture of the place. You bring a world renown black comedienne/activist to campus from poverty, and you can't find a person of color among students, staff, or faculty to serve as a moderator, or even someone who has advocated over the years for these issues. Seriously? Pete Banner-Haley? Harvey Sindima? Rhonda Levine? Really? The Title IX debacle is merely a symptom of that place.